Michael O. Mahler v. Department of Defense
Background
- Appellant Michael Mahler was a contract nurse practitioner employed by Magnificus Corporation at Walter Reed; Magnificus terminated him in March 2015 for alleged performance reasons.
- Mahler filed an EEO complaint alleging discrimination, hostile work environment, and reprisal; the agency issued a Final Agency Decision (FAD) dismissing the complaint for failure to state a claim and (erroneously) treating it as a mixed case, advising him how to appeal to the MSPB.
- Mahler filed an MSPB appeal challenging his termination, an asserted negative suitability determination, alleged false accusations/slander and denial of subsequent employment.
- The administrative judge ordered Mahler to make a nonfrivolous jurisdictional showing; Mahler did not timely make such a showing and the agency moved to dismiss for lack of jurisdiction.
- The AJ dismissed the appeal without a hearing, finding (1) Mahler was a contractor, not an "employee" under 5 U.S.C. § 7511(a), so chapter 75 adverse-action jurisdiction did not apply, and (2) Mahler failed to nonfrivolously allege a negative suitability determination under 5 C.F.R. part 731.
- The Board denied Mahler’s petition for review, affirming the dismissal and noting the agency’s mistaken mixed-case advice could not confer MSPB jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| MSPB jurisdiction over termination (chapter 75 adverse action) | Mahler contends he was wrongfully terminated and entitled to Board review. | Agency argues Mahler was a private contractor, not an "employee" under 5 U.S.C. § 7511(a), so chapter 75 does not apply. | Held: No jurisdiction — contractor status precludes chapter 75 appeal. |
| Jurisdiction based on a negative suitability determination (5 C.F.R. part 731) | Mahler asserts he suffered a negative suitability determination and ineligibility for rehire. | Agency argues Mahler was not an applicant or appointee and the suitability regs do not apply. | Held: No jurisdiction — Mahler failed to make a nonfrivolous allegation of a covered suitability determination. |
| Claims of defamation/denial of subsequent positions | Mahler alleges slanderous statements caused denial of later employment. | Agency contends these tort/third-party employment allegations are outside MSPB subject-matter jurisdiction. | Held: Dismissed — Board lacks jurisdiction over defamation/interference claims absent an appealable agency action. |
| Right to a jurisdictional hearing / due process | Mahler argues he was summarily dismissed without due process and sought a hearing. | Agency and AJ assert a hearing is only required if a nonfrivolous jurisdictional allegation is made. | Held: No error — no entitlement to a hearing because Mahler failed to plead nonfrivolous jurisdictional facts. |
Key Cases Cited
- Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) (nonfrivolous allegation requirement for jurisdictional hearing)
- Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985) (standard for entitlement to jurisdictional hearing)
- Staats v. United States Postal Service, 99 F.3d 1120 (Fed. Cir. 1996) (definition of nonfrivolous jurisdictional allegation)
- Thompson v. Merit Systems Protection Board, 421 F.3d 1336 (Fed. Cir. 2005) (contractor employees are not covered employees for chapter 75 appeals)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court deadline for appeals to the Federal Circuit is strictly construed)